Penobscot River near Prospect Ferry, Maine (Photo: Mark Plummer via Flickr)

Of Time and the River

After 50 years, a corporate polluter may — finally — be forced to start cleaning up the Maine waterway it suffused with mercury.

My organization, NRDC, has been fighting for clean air, clean water, safer wildlife, and healthier communities for 45 years now. That’s quite a long time. But today, lawyers from NRDC are presenting closing arguments in a federal lawsuit pertaining to one company’s record of toxic mercury pollution that stretches all the way back to several years before NRDC was founded. As this case winds down, it’s worth noting that in almost every single aspect, it illustrates perfectly why we continue to need an environmental movement that combines vocal advocacy, sound science, and fierce litigation. And every bit as significantly, the case highlights the crucial importance of perseverance. Winning an argument is a 100-yard dash; winning justice, more often than not, is a marathon.

In 1967, a chemical company by the name of HoltraChem (now known as Mallinckrodt) opened up a new plant in the southeastern Maine town of Orrington, just below Bangor. Almost immediately the facility — which produced chlorine bleach that was used in the production of paper — began dumping mercury into the nearby Penobscot River. And it kept on doing so: For more than 30 years, in fact, the facility deposited anywhere from six to twelve metric tons of this highly toxic metal into the river, ceasing only after NRDC and another organization, the Maine People’s Alliance, jointly filed a citizens’ suit in 2000 to get the company to stop.

Two years and many expert testimonies later, a federal judge found the plant’s owners to be responsible for Penobscot’s elevated levels of mercury. Furthermore, he ordered them to pay for an independent study that would determine just how much mercury had been discharged into the river over the decades, as well as the different ways that all that mercury had affected local wildlife and public health. When Mallinckrodt appealed the ruling, a federal court of appeals in Boston upheld this determination. And when the results of the study came in, they were unambiguous: Yes, there was substantial evidence of heavy mercury contamination just downstream from the facility. And furthermore, the study’s authors concluded, over time this contamination had settled into and thoroughly permeated the sediments of the riverbed, establishing itself on one of the lowest tiers of the riparian food chain — meaning that it was able to work its way up into plants and, ultimately, into fish, eels, crabs, lobsters, and waterfowl.

Mallinckrodt spent millions of dollars on lawyers’ and consultants’ fees to dispute the study’s conclusions. Meanwhile, the people and wildlife living downstream of the Orrington facility have been quite literally absorbing the effects of all that discharged mercury. When scientists looked at the bloodstreams of songbirds living in one marsh, they found the highest mercury levels of any songbird population ever recorded in the United States. The study also concluded that only 10 percent of the lobsters found in one portion of the river were fit for human consumption; in 2014, Maine authorities felt obliged to place a moratorium on the harvesting of lobster and crabs in one seven-square-mile area of the estuary where the Penobscot River flows into its namesake bay. In a state rightly famed for (not to mention economically dependent on) its fisheries, the news that local eel, crab, fish, and lobster populations all display dangerously high levels of mercury contamination is more than a cause for local concern: It approaches the level of statewide crisis.

Despite these findings, Mallinckrodt has spent much of the last decade doing whatever it could within the law to avoid cleaning up the toxic mess for which it has been found responsible by the courts. Which is why last year, lawyers from NRDC and the Maine People’s Alliance once again found themselves back in federal court, this time with the goal of obtaining an order that would compel the company to implement and initiate a long-overdue abatement program.

Today, during closing arguments, we’ll be letting the defendant and the presiding judge know that the clock has finally run out. Over the course of decades, Mallinckrodt knowingly and systematically released one of the most fearful toxins known to man into a body of water that continues to see the effects of that pollution nearly half a century after it began. The mercury is still there: literally tons of it, submerged in the silt of the riverbed, from which it roils up periodically to poison whatever living organisms are unfortunate enough to come into contact with it — not just fish and crustaceans but also the fishermen and lobstermen who catch them, as well as the people who eat them. As long as Mallinckrodt is still there, too, the company will never escape its obligation to the people and wildlife of Maine. We aim to make that very clear.

And in doing so, we aim to make something else very clear as well — not only to Mallinckrodt but also to any corporate polluter who thinks that by taking enough time and spending enough money, they can avoid taking responsibility for their actions. They can’t. The system may not always move quickly, but — like a river — it never stops moving. We’re moving right along with it, and we won’t ever stop, either.